Citation Nr: 0623775
Decision Date: 08/08/06 Archive Date: 08/18/06
DOCKET NO. 04-06 279 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating for arthritis of the left
knee, residual of a fracture of the left fibula, currently
rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Van Stewart, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1943 to
December 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio that increased the veteran's rating for
post-traumatic osteoarthritis of the left knee from zero
percent (non-compensable) to 10 percent disabling.
A motion to advance this case on the Board's docket has been
granted. 38 C.F.R. § 20.900 (2005).
FINDING OF FACT
The veteran's post-traumatic left knee disability is
manifested by flexion to 110 degrees, extension to zero
degrees, with no pain on range of motion testing, and no
instability.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
service-connected left knee arthritis have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.7,
4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5262 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran was service connected for a left knee disability,
described as residuals of fracture of the left fibula, in a
rating decision dated in November 1948. The injury was rated
as noncompensably disabling. In September 2003, the RO
increased the rating to 10 percent disabling for post-
traumatic osteoarthritis of the left knee, a residual of the
fracture of his left fibula.
Prior to submitting the instant claim, the veteran was given
an examination in September 2002 in connection with another
claim. The September 2002 examiner examined the veteran's
knees, and reported that there was no pain with range of
motion testing, with flexion to 150 degrees, and extension to
zero degrees bilaterally. There was no evidence of
instability of the medial and lateral collateral ligaments,
and no instability of the anterior and posterior cruciate
ligaments. McMurray's test was negative bilaterally. The
examiner noted that there were no deficits of weight bearing,
balance, or propulsion on ambulation. He was reported to be
able to walk without the assistance of another person. While
he reportedly used a cane to assist in walking, he was able
to walk in the examiner's presence without it. This examiner
noted that the veteran was able to leave home at will. The
veteran reported walking around the block on a daily basis,
as well as walking to the store on a regular basis, which
took approximately 20 minutes. He reported being able to
walk several hundred yards before needing to stop to rest.
The veteran was afforded an examination for VA in August
2003. The examiner noted that the veteran required
assistance in getting up from a seated position, and also
noted that he had a marked inability to ambulate. The
examiner reported that the left knee flexed to 110 degrees
and extended to zero degrees. The veteran was said to have a
negative Apley, McMurray, drawer, and Lachman sign
bilaterally. Radiographic examination revealed extensive
degenerative changes to the knees, described as
tricompartmental bilateral degenerative changes. The
examiner's impression was advanced post-traumatic
osteoarthritis that was a direct result of the veteran's in-
service knee injury. The osteoarthritis was described as
crippling, and the examiner noted that there was marked
diminished range of motion of the knees. The examiner again
noted that the veteran had difficulty getting up from a
seated position, requiring assistance, and that he used a
cane to walk.
A VA treatment note dated later in August 2003 noted that
there was mild deformity of the knees, with no active
inflammation. On examination, the veteran was found to be
non-tender. Range of motion was said to be normal, though
the veteran reported that when he walked it was "terrible,"
apparently referring to the pain he experienced.
Disability ratings are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. §
4.1. Where entitlement to compensation has already been
established and an increase in the assigned evaluation is at
issue, it is the present level of disability that is of
primary concern. Francisco v. Brown, 7. Vet. App. 55, 58
(1994). Although the recorded history of a particular
disability should be reviewed in order to make an accurate
assessment under the applicable criteria, the regulations do
not give past medical reports precedence over current
findings. Id. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
The RO previously rated the veteran's left leg disability
utilizing Diagnostic Code 5262, impairment of the tibia and
fibula. 38 C.F.R. § 4.71a. Under Diagnostic Code 5262, a 10
percent rating is for application when there is slight knee
or ankle disability. A 20 percent rating is for application
when there is moderate knee or ankle disability. A 30
percent rating is for application when there is marked knee
or ankle disability. A 40 percent rating is for application
when there is nonunion of the tibia and fibula requiring the
wearing of a brace.
The Board finds that the veteran's left knee disability
picture more nearly approximates the criteria required for
the 10 percent rating currently assigned under Diagnostic
Code 5262, and that a higher rating is not warranted. For VA
rating purposes, normal range of motion for the knee is 140
degrees flexion and zero degrees extension. 38 C.F.R.
§ 4.71a, Plate II. All three of the medical findings
discussed above reported normal or near normal range of
motion. The September 2002 examiner reported that there was
no pain with range of motion testing, and reported no
evidence of instability. (A separate rating may be assigned
under Diagnostic Code 5257 for instability caused by the
fracture, but no instability is noted in this case.) The
other examiners have reported similar results, with no
reports of positive findings regarding Apley, McMurray,
drawer, or Lachman sign. The August 2003 treatment note
indicated that the veteran's left leg was nontender, but that
pain arises while walking.
The Board acknowledges that the August 2003 examiner
described the veteran's left knee disability as advanced
osteoarthritis with marked diminished range of motion of the
knees and marked inability to ambulate. However, the
subjective description of "marked diminished range of
motion" is not supported by the objective evidence of nearly
normal range of motion unlimited by pain on testing. The
Board does not doubt that the veteran experiences pain in his
left knee as a residual to the fracture of his left fibula.
However, based on the rating criteria to be used to evaluate
this disability by itself, and based on the objective
findings of three doctors, the Board determines that the
veteran's residual's of the fracture of his left fibula, as
manifested by osteoarthritis in the left knee, is most
appropriately characterized as causing no more than a slight
disability of the knee as contemplated by Diagnostic Code
5262.
The Board's assessment that the veteran's left knee residual
disability, by itself, is no more than slight, is based on an
evaluation of the degree of left knee disability using other
available diagnostic codes. As noted, Diagnostic Code 5262
is based on impairment of the tibia and fibula as manifested
by knee or ankle disability. The veteran's left knee
disability has been described as advanced post-traumatic
osteoarthritis that was a direct result of the veteran's in-
service knee injury. Arthritis due to trauma, which is the
case here, is rated utilizing Diagnostic Code 5010, which
specifies that the disability is to be rated as degenerative
arthritis. Degenerative osteoarthritis is evaluated
utilizing Diagnostic Code 5003. Diagnostic Code 5003, in
turn, calls for rating the disability based on limitation of
motion under the appropriate diagnostic codes, here,
Diagnostic Codes 5260 and 5261.
Under Diagnostic Code 5260, limitation of flexion of the leg
at the knee, a zero percent (non-compensable) evaluation is
for application when flexion is limited to 60 degrees. A 10
percent evaluation is for application when flexion is limited
to 45 degrees. A 20 percent evaluation is for application
when flexion is limited to 30 degrees. A 30 percent
evaluation is for application when flexion is limited to 15
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the
veteran's left knee has never been reported to have a
limitation of flexion greater than 110 degrees, and is thus
non-compensable under Diagnostic Code 5260.
Under Diagnostic Code 5261, limitation of extension of the
leg at the knee, a zero percent (non-compensable) evaluation
is for application when extension is limited to five degrees.
A 10 percent evaluation is for application when extension is
limited to 10 degrees. A 20 percent evaluation is for
application when extension is limited to 15 degrees. A 30
percent evaluation is for application when extension is
limited to 20 degrees. A 40 percent evaluation is for
application when extension is limited to 30 degrees. A 50
percent evaluation is for application when extension is
limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code
5261. Here, the veteran's left knee has always been reported
as having zero degrees (full) extension, which is
noncompensable.
In determining the degree of limitation of motion, several
regulatory provisions are taken into consideration: the
provisions of 38 C.F.R. § 4.40 concerning lack of normal
endurance, functional loss due to pain, and pain on use and
during flare-ups; the provisions of 38 C.F.R. § 4.45
concerning weakened movement, excess fatigability, and
incoordination; and the provisions of 38 C.F.R. § 4.10
concerning the effects of the disability on the veteran's
ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202
(1995). The evaluation of the same disability under various
diagnoses is to be avoided. 38 C.F.R. § 4.14 (2005).
Here, these effects are taken into account in assessing the
range of motion of the veteran's left knee. There has been
no pain noted on range of motion testing. While it has been
noted that the veteran has difficulty arising from a seated
position, that difficulty is attributed to the combined
effects of both knee disabilities. While the veteran
experiences pain on walking, there is no indication that this
difficulty equates to a limitation of range of motion. While
the August 2003 examiner described a "marked inability to
ambulate," the September 2002 examiner noted that the
veteran could walk several hundred yards without resting,
that he walked around the block daily and routinely walked 20
minutes to the store. This indicates to the Board that the
veteran's left leg disability has little impact on normal
endurance, that there is little functional loss due to pain,
no indication of excess fatigability and incoordination, and
minimal effects of the disability on the veteran's ordinary
activity.
Diagnostic Code 5003 alternatively provides that, when the
limitation of motion of the specific joint or joints involved
is non-compensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under Diagnostic Code 5003.
38 C.F.R. § 4.71a, Diagnostic Code 5003. However, this is
already contemplated in the rating already in effect. Thus,
in evaluating the residual left knee disability under other
diagnostic codes available for rating the left knee
osteoarthritic disability, the disability is shown to be no
more than a slight disability that warrants non-compensable
ratings for range of motion, and only a 10 percent evaluation
based on the effect of the osteoarthritis.
In sum, the evidence shows that the veteran's arthritis of
the left knee that is a residual of his fractured left
fibula, when evaluated by itself, as must be done, warrants
the currently awarded 10 percent rating, but does not warrant
an increased rating. The preponderance of the evidence is
against the claim.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
No. 05-7157 (Fed. Cir. Apr. 5, 2006).
The Board notes that the veteran was apprised of VA's duties
to both notify and assist in correspondence dated in March
and May 2003, months before the RO's rating decision on this
issue.
Specifically regarding VA's duty to notify, the notifications
to the veteran apprised him of what the evidence must show to
establish entitlement to an increased rating for his left leg
disability, what evidence and/or information was already in
the RO's possession, what additional evidence and/or
information was needed from the veteran, what evidence VA was
responsible for getting, and what information VA would assist
in obtaining on the veteran's behalf. The RO specifically
requested that the veteran identify any evidence or
information pertaining to his claim that he wanted VA to
obtain on his behalf. The RO also provided a statement of
the case (SOC) and a supplemental statement of the case
(SSOC) reporting the results of its reviews, and the text of
the relevant portions of the VA regulations.
While the notifications did not include notification that
schedular criteria would be applied for rating his
disability, or provide criteria for award of an effective
date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006), there is no effective date issue before the Board.
Moreover, it is evident by the veteran's claim for an
increased rating that he understands that pertinent rating
criteria are applied to service-connected disabilities.
Consequently, a remand is not necessary. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands that would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the appellant are to be avoided).
Regarding VA's duty to assist, the RO obtained the veteran's
SMRs and medical records, and secured medical examinations in
order to ascertain the severity of his disability. VA has no
duty to inform or assist that was unmet.
ORDER
Entitlement to an increased rating for arthritis of the left
knee, residual of a fracture of the left fibula, currently
rated as 10 percent disabling, is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs